CHAPTER XVII.

OF NOTICE.

NOTICE is either actual or constructive; but there is no difference between actual and constructive notice in its consequences (a).

I. Of actual notice little can be said. It requires no definition, and it need only be remarked, that, to constitute a binding notice, it must be given by a person interested in the property, and in the course of the treaty for the purchase. Vague reports from persons not interested in the property, will not affect the purchaser's conscience; nor will he be bound by notice in a previous transaction which he may have forgotten.

That vague reports from strangers are not notice, was decided in the case of Wildgoose v. Weyland (b), where one man came to a person about to buy a house, and told him to take heed how he bought it, for the vendor had nothing in it, but upon trust for A: and another person came to him, and told him it was not so, for the vendor was seised of the land absolutely. The information of the first proved correct, yet the purchaser was held not to have notice; because such flying reports were many times fables, and not truth; and if it should be admitted for a sufficient notice, then the inheritance of every man might easily be slandered.

And not only a mere assertion, that some other person claims a title is not sufficient, but, perhaps, a general claim

(a) See Ambl. 626.

(b) Goulds. 147, pl. 67; and Cornwallis's case, Toth. 254.

is not sufficient to affect a purchaser with notice of a deed, of which he does not appear to have had knowledge (c).

However, no person could be advised to accept a title concerning which there were any such reports, or assertions, without having them elucidated; because what one judge might think a flying, vague report, or a mere assertion, another might deem a good notice. For instance, in Fry v. Porter (d), Hale, C. B. in speaking of the point of notice in that case, (which, however, did not relate to a purchaser), said, "here are several circumstances that seem to show there might be notice, and a public voice in the house, or an accidental intimation, &c. may possibly be sufficient notice."

That the notice to the purchaser must be in the same transaction, seems to have been settled in a case (e) upon the statute of charitable uses (f), the facts of which were, that land given to charitable uses was intended to be sold by act of parliament, and when the bill was read in parliament, it was declared, that the land was chargeable with a charitable use, and an offer was made to otherwise assure the charitable use. The bill, however, did not pass, and the land was afterwards sold to one of the members of the House, who spoke in the debate on the bill; yet this notice was held not to be sufficient notice, because it was not known to the purchaser, except as a member of parlia

ment.

It may be here proper to mention, that an action on the case for slander of the vendor's title will not lie against a person for giving notice of his claim upon an estate, either by himself or his attorney, at

(c) See Jolland v. Stainbridge, 3 Ves. jun. 478.

(d) 1 Mod. 300. See Butcher v. Stapely, 1 Vern. 363.

(e) See East Greenstead's case,

a public auction, or to any Duke, 64; and the cases infra, as to notice to an agent. See 1 Ves. jun. 425.

(f) Supra, p. 643.

person about to buy the estate; although the sale be thereby prevented (g); and to sustain the action, malice in the defendant must be proved (h).

Nor will the action lie against the attorney, although he do not deliver the precise message of his principal, provided it be to the same effect.

II. Constructive notice, in its nature, is no more than evidence of notice, the presumptions of which are so violent, that the Court will not allow even of its being controverted (?); but it is difficult to say what will amount to constructive notice. The following rules may, perhaps, assist the learned reader in his researches.

I. Notice to the counsel, attorney, or agent of the purchaser, is notice to him (k); for otherwise, as Lord Talbot observed, a man who had a mind to get another's estate, might shut his own eyes, and employ another to treat for him who had notice of a former title; which would be a manifest cheat (1). And the same rule prevails, although the counsel, attorney or agent, be the vendor (m), or be concerned for both vendor and purchaser (n).

So notice to the town agent of the purchaser's attorney in the country, is also notice to the purchaser (o).

(g) Hargrave v. Le Breton, Hatt, 2 Vern. 574; Ashley v. 4 Burr. 2422.

(h) Smith v. Spooner, 3 Taunt. 246. See Rowe v. Roach, 1 Maw. and Selw. 304; Pitt v. Donovan, ib. 639.

Baillie, 2 Ves. 368; Maddox v.
Maddox, 1 Ves. 61; and see 3 Cha.
Ca. 110.

(1) Attorney-General v. Gower, 2 Eq. Ca. Abr. 685, pl. 11. See

(i) See 2 Anstr. 438; per Eyre, Ambl. 626. C. B.

(k) Newstead v. Searles, 1 Atk. 265; Le Neve v. Le Neve, 3 Atk. 646; 1 Ves. 64; Brotherton v.

(m) Sheldon v. Cox, Ambl. 624. (n) Le Neve v. Le Neve, 3 Atk.

646.

(0) Norris v. Le Neve, 3 Atk. 26. And

And it is immaterial that the purchase is made under the direction of a court of equity; and infants are equally bound with adults (p).

And if a person, with notice of any claim, purchase an estate in the name of another, without his consent, yet if he afterwards assent to it, he is bound by the notice to his agent (q). So a man cannot elude the effect of having notice, by procuring the conveyance to be made to a third person (r).

But although, if a man purchase an estate which is subject to an equity only, of which he or his agent has notice, it is a fraud; yet, if an instrument is signed by all parties, the intention cannot be interpreted, contrary to such instrument, by notice to an agent, that some of the parties had such intention (s).

Although the counsel, attorney or agent, be employed only in part, and not throughout the transaction, the purchaser is equally affected by the notice. This was doubted in the case of Vane v. Lord Barnard (t); but in the later case of Bury v. Bury, before Lord Hardwicke (u), he said, "where an agent has been employed for a person in part, and not throughout, yet that affects the person with notice."

The notice to the counsel, attorney or agent, must, however, be in the same transaction; because he may very

(p) Toulmin v. Stare, 3 Mer. 210. A petition for rehearing was presented, which was afterwards withdrawn under circumstances not connected with the legal points in the case.

(9) Merry v. Abney, 1 Cha. Ca. 38; 1 Eq. Ca. Abr. 330; 2 Freem. 151; Nels. Cha. Rep. 59; Jen

nings v. Moore, 2 Vern. 609; 1 Bro. P. C. 244.

(r) Coote v. Mammon, 5 Bro. P. C. by Tomlins, 355.

(s) See 1 Bro. C. C. 351. (t) Gilb. Eq. Rep. 6. See 2 Pow. Mortg. 597, 598, 4th edit.

(u) Chan. 11th July 1748, MS. Appendix, No. 25.

easily have forgotten it (v); and if this were not the rule of the Court, it would be of dangerous consequence, as it would be an objection against the most able counsel, because of course they would be more liable than others of less eminence to have notice, as they are engaged in a great number of affairs of this kind (). The same rule of course applies to the purchaser himself. If a man purchases an estate, under a deed, which happens to relate also to other lands not comprised in that purchase, and afterwards purchases the other lands to which an apparent title is made, independent of that deed, the former notice of the deed will not of itself affect him in the second transaction, for he was not bound to carry in his recollection those parts of a deed which had no relation to the particular purchase he was then about, nor to take notice of more of the deed than affected his then purchase (y).

2. A public act of parliament binds all mankind; but a private act of parliament is not, of itself, notice to a purchaser (≈). And it is conceived, that an act of parliament of a private nature, but made a public act (I), in order that it might be judicially taken notice of, instead of being specially pleaded, and to save the expense of an attested

(v) Preston v. Tubbin, 1 Vern. 286; Fitzgerald v. Fauconberge, Fitzgib. 297; 2 Eq. Ca. Abr. 682, (D.) n. (b); Warwick v. Warwick, 3 Atk. 291; Worsley v. Earl of Scarborough, 3 Atk. 392; Steed v. Whitaker, Barnard. Cha. Rep. 220; Hine v. Dodd, 2 Atk. 275; Lowther v. Carleton, 2 Atk. 242, S. C.

MS.; Ashley v. Baillie, 2 Ves. 368. See 1 Ves. 435.

(x) Per Lord Hardwicke, 2 Atk. 242.

(y) Hamilton v. Royse, 2 Scho. and Lef. 327. Per Lord Redesdale; Mountford v. Scott, 3 Madd.

34.

(z) See 2 Ves. 480.

(I) This will not happen in future, for it has been resolved that a private act shall not be made a public act; but it may be enacted, that the act shall be printed by the king's printer, and that a printed copy of it shall be evidence.

copy,